Guardianship

What is a Guardianship?

Guardianship is a fiduciary relationship created by the law for the purpose of enabling one person, the guardian, to manage the person or estate, or both, of another person, the ward, when the law has determined that the ward is incapable of managing his person or estate himself. Wards fall into two general categories: (1) minors, and (2) adults who have been legally determined incompetent to act for themselves.

Unlike a trustee, a guardian does not take title to the ward’s property. Title or ownership of the ward’s property remains with the ward; the guardian takes custody and control (but not ownership) of the ward’s property under the supervision of a court. A guardian’s powers are set forth in state law.

For a minor child, a guardian is the person who has legal responsibility for the child, if there is no parent living who is able and willing to do so. Guardians make decisions regarding a child’s education and health care and exercise moral supervision as well. It is important to consider whether a specific person you intend to name is willing, able and competent to assume the challenges and responsibilities that come with raising children.

How do I name a guardian for my children?

You may name a guardian by specifically designating the person or persons in your Will.

In certain situations, you may also name a temporary guardian (sometimes referred to as a custodian) in a separate written document, to become effective on a triggering event, such as your temporary disability. A temporary designation is usually only effective for some period of time (i.e. 60 days) after the triggering event and terminates upon the designating parent’s death (at death, a permanent guardian will need to be appointed). Parents occasionally name temporary custodians if they will be traveling overseas or undergoing an extensive medical procedure for which they may not regain consciousness for some significant period of time.

Before naming any person as a guardian for minor children, it is important to discuss your wishes with your proposed guardian. While most people are flattered to be asked, a few are unwilling to accept the responsibility or have other reasons for which they might be unable to take on the role. It is also wise to consider appointing an alternate guardian, in case the first person you name is deceased or becomes unable or unwilling to assume that responsibility.

What happens if I don’t name a guardian for my children?

If you should die without a Will or you die with a Will but fail to designate a guardian in the Will, the court will decide who takes care of your minor children. The court’s decision may be contrary to what you would have chosen. So, you should take the opportunity to specifically express your desires in a Will or other legally enforceable guardianship document.